system license agreement (canada)
BLUE STAR SPORTS SYSTEM LICENSE AGREEMENT (canada)
This System License Agreement (“License Agreement”) is entered into between SPay, Inc. d/b/a Blue Star Sports, a Delaware corporation located at One Cowboys Way, Suite 190, Frisco, TX 75034 (“Blue Star”) and your organization (“Customer”) as an authorized user of the Blue Star System (defined below).
Whereas, Blue Star provides electronic registration, association, team, club, and league management solutions, scheduling, background checks, web hosting services, and payment processing services including (but not limited to) credit card, debit card, check processing/guarantee, gift/stored value card, ACH, and international processing (“Services”).1
Whereas, Blue Star intends to combine, share or integrate different Blue Star IP Assets, as needed, to enhance the Customer’s functionality and broaden the scope of services offered by Blue Star to Customer (collectively “Blue Star System”).
Whereas, Customer desires to license the Blue Star System for use according to the terms and conditions herein.
Whereas, the Blue Star System is solely owned by Blue Star. The Blue Star System is licensed, not sold. Customer hereby agrees the Blue Star System, as well as the Blue Star IP Assets, are protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties.
In consideration of the mutual promises set forth below, the parties agree as follows:
- Grant of License
- 1.1 Effective Date. Customer will acknowledge the payment of certain fees in a separate pricing agreement (“Pricing Agreement”) and the date of execution of said Pricing Agreement will become the Effect Date of the relationship between the parties.
- 1.2 Scope. Subject to Customer’s compliance with all terms and conditions of this Agreement and the payment of fees agreed to in the Pricing Agreement executed, Blue Star hereby grants to Customer, for the Term, a limited, personal, nontransferable license to use the Blue Star System (in object code form only).
- 1.4 Ownership of System and Intellectual Property. Customer acknowledges and agrees that no title to the intellectual property in the Blue Star System, including any and all proprietary trade secret information and information about business processes, is transferred to Customer under the terms of this License Agreement. All right, title and interest in and to the Blue Star System is the sole property of Blue Star, including any modifications thereto. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Blue Star System are granted to the Customer, and no interest in or rights or licenses to the Blue Star System shall inure in or accrue to the Customer, whether by implication, estoppel, or otherwise. All rights of any kind in the Blue Star System that are not expressly granted in this Agreement are entirely and exclusively reserved to and by Blue Star, and its successors and assigns.
- 1.6. Permitted Blue Star System Uses. Blue Star supports the maintenance of the software product and unlimited support services to clients primarily through registration fees collected from the use of the Blue Star System. Because of the high quality of the product and the level of service provided, Blue Star does not provide web site only services. As such, Customer agrees to use registration services during the normal course of their season when using the Blue Star web site feature and Customer agrees they will not use another registration provider during the time they are using the Blue Star System.
- Payment Processing and Other Fees
- 2.1 License Fees. In consideration for its license to use the Blue Star System, Customer agrees to pay certain annual fees, one-time fixed fees, ongoing and credit card processing fees (collectively, “Fees”). These Fees are outlined in the Pricing Agreement provided to Customer via email and are incorporated herein upon acknowledgment by Customer.
- 2.2 Payment Processing. It is the intent of both Blue Star and Customer that a material element of this Agreement is to include/use Blue Star’s credit & debit card processing services (“Processing Services”) as part of, or in combination with, the Blue Star System. Therefore, Blue Star and Customer specifically agree that all Processing Services associated with Customer, including but not limited to, all related processing from websites, mobile apps, related club, league, team payments (even if white labeled sites or apps through the Customer) and any P2P payments, will be handled by Blue Star.
- 2.2.1 Blue Star will consider the processing needs of the Customer, the Blue Star products chosen by the Customer and listed in the Purchase Agreement, the geographical location and currency the Customer accepts and place the Customer with one of Blue Star’s approved processing partners (“Processing Partners”). Once a Processing Partner is chosen, Customer hereby agrees to provide the necessary information required by that Processing Partner to set-up the merchant account. A list of the approved processing partners is listed below in Addendum A.
- 2.3 Custom Development. If Customer wants to add additional features for specific design, development or implementation of additional features outside the Blue Star System, Customer agrees to pay those costs or fees upon receipt of invoice from Blue Star. Blue Star will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement and the cost associated with the project (“SOW”). Blue Star will proceed once both Blue Star and Customer will acknowledge (sign and date) the SOW. Once the SOW is acknowledged, it will become an amendment to this Agreement with all other terms and conditions contained herein being adopted.
- System Support. Customer shall receive free telephone and email support based on geographical location of customer’s chosen products. The hours of customer service can be found on the Blue Star website.
- Term, Termination and Transition.
- 4.1 Term. The Pricing Agreement will also include a section setting forth the length of the relationship (“Term”).
- 4.2 Termination. Either party shall have the right to terminate this License Agreement prior to the end of the Initial Term (or any Extended Term as defined) upon a material breach of this Agreement by the other party by providing written notice to the breaching party of said termination, provided that the breaching party is provided written notice of such material breach and is allowed at least Fifteen (15) days to cure such breach. If the material breach is of such a nature that is effectively incurable, then the non-breaching party may terminate the agreement immediately. Blue Star may terminate this Agreement upon written notice for Customer’s violation of Section 1 (“Grant of License”) or failure to pay the Fees as set forth in the Pricing Agreement.
- 4.3 Effect of Termination. Termination of this Agreement for any reason (except material breach by Blue Star) shall not allow Customer a refund of Fees and Customer agrees to pay all Fees due and owing to Blue Star up to and until the date Customer ceases all use of the Blue Star System. Upon termination of this Agreement for any reason, Customer shall make no further use of the Blue Star System whatsoever. Customer acknowledges that upon disconnection from the Blue Star System, Customer shall no longer be able to use the features of the Blue Star System including Customer’s Web Site. All Customer Content shall be accessible by Customer notwithstanding termination of this Agreement for a period of 30 days following termination of this Agreement.
- 4.4 Transition Period. If this Agreement terminates pursuant to Section 4.1 or if Customer terminates this agreement due to a material breach by Blue Star pursuant to Section 4.2, Customer may request that Blue Star continue to provide the Blue Star System for up to three (3) months (the “Transitional Period”). Customer agrees to continue to pay any and all Fees associated with the Blue Star System that are in place immediately prior to the Transition Period.
- 5.1 The parties acknowledge that each may be exposed to confidential information relating to the other party's business in performance of this License Agreement, including but not limited to business methods and processes, products, Customers, technology, financial status and the Blue Star System, which may include the proprietary intellectual property and/or trade secret information of that party. The parties agree that, for the term of this License Agreement as set forth in Section 4.1 and for a period of ten (10) years from the date of termination, neither party will disclose the confidential information of the other to third parties without the prior written consent of the disclosing party.
- 5.2 The Blue Star System constitutes trade secrets and confidential information of Blue Star. The foregoing license is for internal business purposes only and ends on the termination of this License Agreement. On termination of this License Agreement, you shall discontinue use of the Blue Star System and destroy or return all copies of the Blue Star System to Blue Star.
- 5.3 You may not under any circumstances:
- Copy the Blue Star System, except for a single backup copy;
- Sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the System;
- Use or allow use of the Blue Star System after the termination or expiration of this License Agreement (except pursuant to another valid license or during the Transition Period);
- Allow others to use, copy, or access the Blue Star System in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service;
- Access, use, or disclose the Blue Star System source code;
- Remove or alter any copyright or other proprietary rights notices included in or affixed to the Blue Star System;
- Sell, license, disclose, or distribute any product designed or intended for use with the Blue Star System;
- Publish or disclose the results of any benchmark tests relating to the Blue Star System; or
- Use the Blue Star System in applications or systems when failure of the Blue Star System to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property.
- Indemnification. Customer agrees to indemnify and hold harmless Blue Star from any third party claims (i) based on Customer’s or its members’/users’ use of the System, including any Data provided by Customer or its member/users; and (ii) based on or alleging any violation of Customer’s representations and warranties under Section 9, provided that Blue Star, as applicable, notifies Customer promptly in writing of the claim (provided further that any failure by Blue Star to provide such prompt shall only relieve Customer of its obligations under this Section 8.1 to the extent that it has actually been prejudiced by such failure), gives Customer reasonable assistance in the defense and allows Customer to control the defense or settlement. Customer may not settle any such third party claim without Blue Star’s prior written consent.
- Representations and Warranties
- 7.1 By Customer. Customer represents and warrants the following: (i) all information provided by Customer or its members/users to Blue Star and/or displayed on the Customer Site is true and accurate in all material respects and does not infringe upon the intellectual property and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all content on Customer Site; (iii) Customer is in compliance in all respects with all applicable laws and regulations; (iv) Customer shall comply with all terms and conditions of this Agreement; (v) Customer shall at all times comply with all applicable laws and regulations related to the collection, use and storage of personal information, and (vi) Customer has the authority to represent and enter into this agreement on behalf of its members/users and access their Data without restriction.
- 7.2 Exclusive Warranty. Blue Star represents and warrants that the Blue Star System will substantially comply with specifications during the term of this License Agreement. Blue Star agrees to use commercially reasonable efforts to correct material defects in the Blue Star System (that Blue Star can replicate) within thirty (30) days of receipt of written notice of such defect from the Customer. EXCEPT FOR THE FOREGOING WARRANTY, THE SYSTEM AND ITS CONTENT IS PROVIDED “AS IS” AND CUSTOMER USES THE BLUE STAR SYSTEM AT ITS OWN RISK. FURTHERMORE, SHOULD THE CUSTOMER REQUEST THAT BLUE STAR IMPORT CUSTOMER DATA INTO THE BLUE STAR SYSTEM, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR PROVIDING THE DATA IN A FORMAT THAT MEETS THE IMPORT REQUIREMENTS OF THE BLUE STAR SYSTEM AND PROVIDES THE FORMAT ACCORDING TO THE CUSTOMER NEEDS. BLUE STAR SHALL NOT BE RESPONSIBLE FOR ANY ERRORS IN DATA, THE QUALITY OF THE DATA, OR CORRECTIONS TO IMPORTED DATA IN THE SYSTEM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE BLUE STAR SYSTEM MAY NOT PERFORM OR MEET THE CUSTOMER’S OR END USER’S EXPECTATIONS. BLUE STAR DOES NOT WARRANT THAT THE USE OF THE BLUE STAR SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. BLUE STAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. IN NO EVENT SHALL BLUE STAR BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND/OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO (I) THIS LICENSE AGREEMENT; (II) THE PERFORMANCE OF THIS LICENSE AGREEMENT; (III) THE USE OF ANY PRODUCT, SERVICE OR BLUE STAR SYSTEM PROVIDED UNDER THIS LICENSE AGREEMENT; AND/OR (IV) AN ALLEGED BREACH OF THIS LICENSE AGREEMENT, WHETHER OR NOT THAT PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- Survival. The following provisions shall survive termination of this License Agreement for any reason: Section 1.3 (“Restrictions”); Section 1.4 (“Ownership of System and Intellectual Property”); Section 1.5 (“Ownership of Data”); Section 4.3 (“Effect of Termination”); Section 5 (“Confidentiality”); Section 6 (“Indemnification”); Section 7 (“Representations and Warranties”); Section 8 (“Limitation of Liability”); Section 9 (“Survival”) and Section 10 (“General”).
- 10.1 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- 10.2 Severability. In the event of invalidity of any provision of this License Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this License Agreement.
- 10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in such Province and this Agreement shall be treated, in all respects, as an Ontario contract.
- 10.4 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
- 10.5 Assignment. This License Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including by action of law, without the express written consent of Blue Star. Any assignment or delegation in violation of this Section will be void and of no effect.
- 10.6 Injunctive and Other Equitable Relief. The Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by the Customer would, by its nature, be inadequate, and that in that event Blue Star shall be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.
- 10.7 Entire Agreement. This License Agreement, together with the Blue Star Policies, is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this License Agreement. This License Agreement may only be modified by mutual agreement of the parties in writing.
- PROPAY, INC.
- FIDELITY INFORMATION SERVICES, LLC
Customer agrees that Blue Star will electronically deduct all Fees from Customer’s bank account on around the first day of each month and the fifteenth of each month beginning the first month of invoice. Blue Star will provide Customer with an electronic invoice on or around the first and fifteenth of each month, detailing all Fees to be deducted. Late payment fees shall be assessed at a rate of one and one half percent (1½ %) per month or the highest rate allowed by law, until paid in full.
- PAYPAL – EXPRESS CHECKOUT
Customer agrees that fees for processing will be done at the time of transaction via a billing agreement. A Billing agreement will be setup prior to any online transactions. Fees will be transferred from the Customer’s PayPal account into the Blue Star PayPal account.
- BEANSTREAM INTERNET COMMERCE INC.
Customer agrees that fees for processing will be transferred electronically by Beanstream to Blue Star around the 15th day of the month for the transactions for the previous month.
This Software License Agreement was last updated 1-12-16
1 Blue Star owns or acquired the assets of Bonzi Technologies, Inc., Pointstreak Sports Technologies, Inc., Saucer Technologies Group, Ltd carrying on business as Goal Line Sports Administration Systems, SDI Camps & Races, LLC, CarmonTech.com, Inc. d/b/a League Lineup and Prime Time Sports, LLC (“Blue Star Entities”). As such, Blue Star owns multiple trademarks and intellectual property assets surrounding the sports and events administration management (“Blue Star IP Assets”). While Blue Star intends to build the Project on the Bonzi™ set of assets, it may integrate other aspects of the Project with additional Blue Star IP Assets as determined by the parties.